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ANDREWS v. DRAVO CORP.

January 8, 1968

William ANDREWS, Plaintiff,
v.
DRAVO CORPORATION, Defendant



The opinion of the court was delivered by: MARSH

 MARSH, District Judge.

 The plaintiff, William Andrews, a seaman, brought this civil action against Dravo Corporation, his former employer, under the Jones Act and general maritime law to recover damages for aggravation of a serious vascular disease and premature total and permanent disability, allegedly resulting from the defendant's breach of obligation to properly care for plaintiff despite its knowledge of his disease and two shipboard injuries aggravating it, and from defendant's breach of obligation to furnish him with maintenance and cure. One injury was sustained in May or June, 1962, and the other in February, 1964; both were caused by accidents attributed to negligence and unseaworthiness; both caused pain, suffering and loss of earning power. An amended complaint added a third count for maintenance and cure for the injuries and disability, and reiterated a claim for damages "for failure to furnish maintenance and cure which has seriously and severely aggravated and prolonged plaintiff's injuries and disabilities and has caused him great and continued pain and suffering and starvation, loss of wages and impairment of earning power and counsel fees for which additional damages are claimed * * *"

 After trial, the jury returned two verdicts in favor of plaintiff: $30,360 under the Jones Act and $6,745 for maintenance and cure, on which judgments were entered.

 The defendant timely filed a "Motion for Judgments in Accordance with Motion for Directed Verdict as to Portions of Plaintiff's Claims", and a "Motion for a New Trial" in the liability action and also in the maintenance and cure action. In our opinion, the motions should be denied.

 Dravo contends that it is entitled to judgment n.o. v. as to portions of the plaintiff's claims because under the evidence Andrews did not prove the bulk of his claims for damages and for maintenance and cure. At the trial Dravo introduced no testimony; the apparent defense strategy was to rely on the substantial difficulty in proving the effects of the two injuries upon the plaintiff's vascular disease.

 Of course, when probing the record to determine whether there is any merit to the defendant's prayer for judgment n.o. v., the court is bound to accept the evidence and all reasonable inferences therefrom in the light most favorable to the plaintiff, Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 35, 64 S. Ct. 409, 88 L. Ed. 520 (1944), and draw all reasonable inferences against the defendant, Makowsky v. Povlick, 262 F.2d 13 (3d Cir. 1959).

 Unknown to either party in 1962, Andrews was suffering from diabetes mellitus and a vascular disease variously characterized as atherosclerosis, arteriosclerosis, thromboangiitis obliterans, arteriosclerosis obliterans, arteriosclerotic occlusive disease, Raynaud's disease, and Buerger's disease.

 One day in May or June, 1962, while working on defendant's towboat, Andrews slipped on some gravel which defendant negligently permitted to lie on a gunnel where he had to walk and injured his little toe when it struck a brace or pump box. He reported the injury to Captain Rogers. He finished his hitch and left the vessel, but when recalled to work a week later the toe was sore, swollen and discolored. He exhibited the toe and foot to Captain Rogers. The Captain did not offer him medical attention nor send him to the defendant's dispensary, or to a doctor, but instead permitted him to go home to Cambridge Springs, Pennsylvania.

 Andrews went to Dr. Verinisi in Cambridge Springs, his family doctor, who was an osteopath. Dr. Verinisi diagnosed his condition as dry gangrene due to arteriosclerosis.

 Later, on August 29th, September 17th and September 26th, Andrews was examined by defendant's doctors at the defendant's dispensary. On the last mentioned day, Dr. Marshall, the doctor regularly employed at the dispensary, diagnosed his condition as "serious peripheral vascular deficiency and thromboangiitis obliterans". Tests indicated "that you probably are diabetic which would complicate your present illness". *fn1" At no time did defendant's doctors treat him or secure for him the specialized treatment which his condition called for; *fn2" instead he was told to return to his family doctor who then hospitalized him in the Erie Osteopathic Hospital where he was treated for diabetes and his other ailments. See Exhibit 2.

 In November, 1962, the defendant negligently permitted Andrews to return to work as a deckhand (T., pp. 246, 247, 300, 329, 330). In permitting him to do so Dr. Marshall reported: "Pulsation not palpable in lower leg (left) - he mentions symptoms suggestive of mild intermittent claudications." He specified that Andrews should dress his feet warmly and wear safety toe shoes. *fn3"

 From the evidence the jury could reasonably have inferred that from the time the defendant's captain saw Andrews' inflamed toe, the defendant breached its obligation to provide him with the specialized medical care required by his serious vascular condition; and that this breach, plus the negligent permission to return to heavy work, aggravated the disease and hastened the onset of his total and permanent disability (T., pp. 240-241, 305-307, 315-316, 318, 323, 328, 331).

 It is true that there was medical testimony that Andrews was totally and permanently disabled when, after the toe injury, his vascular disease was discovered, but in context the jury quite properly could have inferred this to mean that he should not have been permitted by the defendant's doctor to resume the heavy work of a deckhand, - not that he could not do the work under economic pressure. As a matter of fact, he was negligently permitted by defendant to work, except for several weeks absence because of the second injury, from November, 1962, to June 2, 1964, as a deckhand, regardless of his precarious ...


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